The State Bar Association of North Dakota Fall 2014 Gavel Magazine - Page 26

STEALTH DISCOVERY - CAN LAWYERS BUY LITIGATION OPPONENT’S USED COMPUTER EQUIPMENT? of information from the hard drive, which the defendant-owner had attempted to obliterate by reformatting the hard drive and installing a new operating system. JUSTICE DANIEL CROTHERS North Dakota Supreme Court Can a lawyer (or a client at the lawyer’s direction) buy a litigation opponent’s used computer equipment? If so, can the buyer hire a forensic computer expert to attempt recovering the opponent’s deleted or concealed data from the computer? A Washington federal district court answered these questions by denying the former computer owner’s motion to disqualify opposing counsel and by requiring a process for the former owner to assert the attorney-client privilege before any recovered information could be used in subsequent proceedings.1 The Facts: Plaintiffs and defendants were litigating a commercial dispute. Several defendants settled by confessing judgment in plaintiffs’ favor. Plaintiffs obtained a writ of execution, and the sheriff seized personal property from one of the settling defendants, including a personal computer. The computer was sold at public auction with plaintiffs’ counsel prevailing in a bidding war with defendants’ representative. Plaintiffs’ counsel then sent the computer to a third party for recovery 26 THE GAVEL When plaintiffs tried using some of the recovered information in a later court proceeding defendants moved to disqualify plaintiffs’ counsel. Plaintiff resisted disqualification and moved to allow use of the evidence, claiming defendant waived any privilege that might attach to information contained on the computer. This article discusses the disqualification motion and an article in the next Gavel will explore issues related to the privilege claims. Attorney Disqualification: The court recognized that a litigation party who wrongfully obtains documents outside the normal discovery process can be subject to sanctions, including dismissal of the action or disqualification of counsel.2 Yet the Kyko court concluded defendants improperly relied “on a case applying an old version of the model ethical rules and an outdated ABA opinion.”3 Instead they should have relied on current Rule of Professional Conduct 4.4 which only requires notice to opposing parties and does not require return of inadvertently sent documents.4 As a result, the court ruled plaintiffs’ acquisition of the computer was not “inherently wrongful” and disqualification was not required on that basis.5 First, legitimate discussion can be had whether documents forensically extracted from an opposing party’s computer sold at public auction were “inadvertently sent” to plaintiffs by the defendants, as contempla